I.
FACTS & PROCEDURAL HISTORY
Allisоn Haskell Jones appeals his conviction for possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Appellant was stopped by a border patrol agent on suspicion of smuggling aliens, while driving northbound on Texas state Highway 118 some eighty (80) miles north of the Texas-Mexico border. In the district court, Jones made a motion to suppress the evidence from the search, which was denied, whereupon Jones pleaded guilty, reserving his right to appeal.
The facts relevant to Jones’s motion to suppress are these. On March 8, 1997, a little after 7:00 a.m., Jones was driving northbound on Highway 118 in a blue Toyota 4 Runner, 1 about five miles south pf Alpine, Texas, approximately four miles .north of a fixed border checkpoint, and some eighty (80) miles north of the Texas-Mexico border. His lights were on,, though it was after sunrise. United States Border Patrol Agent Luis Barrera was proceeding southbound on Highway 118 when he noticed Jones’s oncoming vehicle. Barrera pulled onto the shoulder to observe Jones as he passed. Barrera noticed that the 4 Runner was covered in mud, which Barrera thought was fresh (not dry), even though Barrera was aware of no rainfall in the area in the previous several weeks. Barrerа thought Jones looked like a tourist and did not recognize him from the area. Barrera also saw a blue tarpaulin draped over something in the rear cargo area of the 4 Runner.
Barrera decided to follow Jones. Barrera pulled in behind Jones at between fifty-five (55) and sixty-five (65) miles an hour. Barrera kept his cruiser within three car lengths of Jones and at one point got close enough tо read the license plate, i.e., he was tail-gating Jones. 2 A license check revealed that the vehicle was registered to one Allison Jones of Garland, Texas. Jones was continually glancing back at Barrera in the rear view mirror, and a couple of times let the 4 Runner slip off the pavement. Barrera noticed that the 4 Runner’s right rear tail light was inoperative.
Barrera finally pullеd Jones over and called his partner, Agent Scott Roddy, for back-up. When Agent Roddy arrived, Barrera approached the 4- Runner with a dog, which alerted to the vehicle immediately. Barrera asked Jones what his citizenship was and for him to produce his driver’s license. Jones told Barrera that he was a United States citizen and handed Barrera his driv *367 er’s license. Barrera could smell the odor of marijuana and deodorizer. Jones was visibly nervous. Agent Roddy asked Jones to exit the 4 Runner. Barrera put the dog inside the 4 Runner, where he alerted to contraband in the rear cargo area. Barrera looked through the rear side glass of the 4 Runner and saw flour or seed sacks. Barrera then raised the tarp and discovered 222.46 pounds of marijuana.
II.
LAW & ANALYSIS
A.
Standard of Review
“A district court’s purely factual findings are reviewed under the clearly erroneous standard. The evidence presented at a pre-trial hearing on a motion to suppress is viewed in the light most favorable to the prevailing party. The conclusions of law derived from a district court’s findings of fact, such as whether a reasonable suspicion existed to stop a vehicle, are reviewed de novo.”
United States v. Inocencio,
The question for this Court is whether, viеwing the evidence in the light most favorable to the government, the district court erred by holding that Agent Barrera properly formed a reasonable suspicion of illegal activity upon observing a Toyota 4 Runner with its lights on at 7 a.m., covered in fresh mud, with an inoperative tail light and a blue tarp draped over something in the rear cargo area traveling northbound on Highway 118 (which comes from Big Bend Natiоnal Park just on this side of the border), five miles south of Alpine, Texas, and approximately eighty (80) miles north of the Texas-Mexieo border, driven by a middle-aged, tourist-looking, Caucasian male who had probably just come through the border checkpoint around shift change and who continually glanced back in his rear-view mirror when Agent Barrera decided to follow him? We conclude that the district court did еrr and therefore reverse Jones’s conviction.
B.
Roving Border Patrol Stops Under the Fourth Amendment
Warrantless investigatory stops by border patrol agents which are not conducted at the border or its functional equivalent are unconstitutional unless supported by a reasonable suspicion of illegal activity.
Inocen-cio, supra
at 722. “Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a еar in the border area.”
United States v. Brignoni-Ponce,
C.
Proximity to the Border
In cases of investigatory stops based on suspicion of illegal alien smuggling, “we have at times focused our inquiry initially on the question of whether the arresting аgents could reasonably conclude a particular vehicle originated its journey at the border.”
Cardona,
This factor is totally missing from this case. Jones was too far from the border to support an inference that his journey originated at the border. Furthermore, on Highway 118, between the point where Barrera first observed Jones and the border, lies Big Bend National Park and the settlements of Study Butte and Terlingua. It was just as likely that Jones left before sunrise (hence the driving with his lights on) from one of those other locations on Highway 118 as it is that he started from the border. The only independent evidence which might arguably indicate that Jones was more likely to have started at the border is the presence of “fresh” mud on Jones’ 4 Runner.
Viewing the evidence in the light most favorable to the government (the prevailing party) as we must, we accept the district court’s finding that Jones’s 4 Runner had a noticeable quantity of fresh mud on it. Moreover, this Court has no reason to doubt that Agent Barrera sincerely suspected that the mud on the 4 Runner сame from a possible crossing of the Rio Grande, because he was aware of no rainfall in Brewster County in the previous two to three weeks. The question is whether it was reasonable for Agent Barrera to suspect that. We conclude that it was not.
There are far too many places between Alpine, Texas, and the Texas-Mexico border for a vehicle to pick up frеsh mud virtually any time of the year. The testimony at the suppression hearing demonstrates that there are numerous ranch roads in the area that cross spring-fed creeks that flow year-round. Bruce Bourbon, a park ranger at Big Bend, who was qualified to the court as an expert on local geology, testified that in March of 1997 there were many springs flowing in Big Bend, and that he knew of several park roаds that had been muddy. Mike Baskette, who kept the rainfall records for Terlingua, testified that many of the local roads cross Ter-lingua Creek, which always has some water in it. He also keeps a store at Study Butte and sees much of the traffic that departs from Big Bend. He testified that most of the people down there have mud on their cars. Don Parkinson operates a ranch, rock shop, and tourist center in Brewster County about 18 miles south of Alpine, and as a camping guide is very familiar with the state of the roads in Brewster County. He testified that there are many tourists in Brewster County and most of them have muddy cars. Indeed, the very road Parkinson lives on, which intersects with Highway 118 just south of the border checkpoint, is crossed by a spring fed creek. Finally, rainfall records indicate that it had rained .10 inches on February 25 and .03 inches on March 1 at Alpine, Texas. In addition, rainfall had been heavy throughout the county during the month of February, *369 1997, with Alpine receiving 1.98 inches and Study Butte/Terlingua receiving .89 inches,
This court is unwilling to accept the notion that Agent Barrera was unaware of all the other places where Jones’s 4 Runner might have picked up fresh mud between Alpine, Texas, and the border. In short, there is simply nothing suspicious about a muddy 4 Runner traveling in an area where one should expect most vehicles to have some mud on them.
3
Therefore, it was not reasonable to suspect that Jones’s 4 Runner originated its journey at the border. This lack of origination at the border does not end the reasonable suspicion inquiry, but without it “the facts offered by the government to support a reasonable suspicion will be examined charily.” Inocencio,
D.
Totality of the Circumstances
There are several factual conditions which caused Agent Barrera to suspect Jones was smuggling illegal aliens. First, Jones was driving at 7:00 a.m., after sunrise, with his lights on. The fact that Jones was driving with his lights on may indicate that he crossed the border or picked up illegal aliens on this side of the border before dawn. However, the fact that Jones was driving northbound on Highway 118 with his lights on at 7:00 a.m. five milеs south of Alpine, Texas, is just as consistent with him being a tourist who left Big Bend National Park before dawn. Indeed, the latter possibility is far more likely, since, as noted by Agent Barrera, Jones looked like a tourist, and a license check revealed that he was from Garland, Texas. Second, Jones’s vehicle was covered in fresh mud. Once again, as previously noted, it is far more likely that the mud came from one of the numerous other sources of fresh mud between Alpine, Texas, and the Texas-Mexieo border, as opposed to the Rio Grande.
Third, Jones looked like a tourist, and Barrera had it on good authority that smugglers had recently engaged in the practice of using tourists or tourist-looking persons to bootleg illegal aliens, because they looked less suspicious. In other words, what was susрicious about Jones is that he looked like an unsuspicious tourist. A factual condition which is consistent with the smuggling of illegal aliens in a particular area, will not predicate reasonable suspicion, if that factual condition occurs even more frequently among the law abiding public in the area. For example, the fact that one is of Mexican national origin does not creаte reasonable suspicion that one is an illegal alien, since, in border areas, there are far more legal citizens than illegal aliens of Mexican national origin.
Brignoni-Ponce,
Fourth, Jones had a blue tarp draped over something, which Agent Barrera suspected Jones might be using to conceal illegal aliens. One does wonder what the purpose of the blue tarp would be inside a fully enclosed sport-utility vehicle. Indeed, it would be a useful accessory when attempting to hide illegal aliens. However, it would also be useful to hide valuables from would-be auto-burglars. More importantly, such a tarp is a common camping accessory which can be found very often among the gear carried by tourists at Big Bend. 4 Given that Jones was *370 not from the area, he looked like a tourist and was headed away from Big Bend on the highway most often used to access the park, the presence of the tarp would seem more indicative of a tourist coming from Big Bend than of an illegal alien smuggler. Indeed, nothing in Agent Barrera’s own experience points to the contrary. 5 Therefore, the presence of the tarp in the back of Jones’s 4 Runner was not cause to suspect that he was engaged in illegal activity.
Fifth, Agent Barrera noticed that Jones’s right-rear brake light was inoperative, which indicated to him that the wiring might have been damaged by someone hidden in the cargo area or by someone hiding contraband within the side wall of the 4 Runner. Although Agent Barrеra himself has never apprehended a drug smuggler or alien smuggler where the wiring harness to the tail lights was damaged by the smuggler’s attempt to conceal his cargo, it is at least possible that such damage might occur as Agent Barrera suspected. Nevertheless, an inoperative tail light alone will not support reasonable suspicion. In combination with other suspicious circumstances, аn inoperative tail light may provide corroborative evidence of illegal activity. However, it remains to be seen whether there are any other suspicious circumstances in this case, in combination with which the inoperative tail light may have some significance.
Sixth, Jones came through the checkpoint just before 7:00 a.m. Barrera testified that he had been informed by the DEA that smugglers had been engaging in the practice of coming through the border checkpoint south of Alpine at around the time of shift change, 7:00 a.m. This coincidence caused Barrera to think that Jones might be a smuggler who came through the checkpoint during shift change so as to avoid detection. The time frame in which a person passes a particular point in the road may indicate possiblе illegal activity, if other objective facts support a conclusion that persons passing a particular point at a particular time may be involved in illegal activity.
United States v. Cortez,
Finally, as previously noted, the behavior of a driver may support a reasonable suspicion.
Brignoni-Ponce,
The totality of the circumstances does not support a reasonable suspicion of illegal activity. The fact that Jones, who was from Garland, Texas, and who Agent Barrera described as looking like a tourist, was driving northbound on Highway 118 approximately eighty (80) miles north of the Texas-Mexico border at 7:00 a.m., after sunrise, with his lights on in a Toyota 4 Runnеr with fresh mud on it with a blue tarp over something in the rear cargo area is far more consistent with Jones being a tourist coming from Big Bend National Park than an alien smuggler or drug smuggler who crossed the Rio Grande before dawn that morning. The inoperative tail light and time period when Jones came through the checkpoint south of Alpine do not alter the inescapable conclusion that Agent Barrera lacked reasonable suspicion to make an investigatory immigration stop. Therefore, we must reverse Jones’s conviction. REVERSED and REMANDED for further proceedings consistent with this opinion.
Notes
. The Toyota 4 Runner is a sport-utility vehicle with a removable rear seat and a totally enclosed cargo area.
. At the suppression hearing, Barrera testified that a safe following distance аt those speeds would he five to six car lengths.
. We are naturally concerned that every distinguishing characteristic and its exact opposite will both be considered indicators of suspicious activity, creating a damned if you do, damned if you don’t situation
for
citizens traveling near the border. A holding that too much dirt or mud is suspicious, combined with this Court’s recent holding that not enough dirt or mud is suspicious would illustrate thе point perfectly.
See United States v. Nichols,
. Barnes, Baskette, Bourbon and Parkinson all testified that it was not at all uncommon to see *370 tarps of varying colors among the gear carried by tourists at Big Bend.
. Agent Barrera testified that only once had he stopped someone using a tarp to conceal contraband. In that case the tarp was over the bed of a pickup, where the cargo area is not otherwise enclosed.